Former St. Luke's surgeon found not negligent

STILLWATER, Minn. — Defense attorneys Mark Solheim and Charles Bateman on Wednesday dissected a couple of medical experts who testified against their clients.

Solheim told jurors the two experts who took the witness stand against former Duluth neurosurgeon Stefan Konasiewicz and St. Luke’s hospital were “have-gun, will-travel witnesses” who “make a living traveling across the country telling plaintiff’s lawyers what they want to hear.”

Bateman told jurors one of the plaintiff’s experts “has been in the courtroom more often than I have been.” He added that the expert can buy five or six cars a year just on the money he makes testifying at trials.

Solheim’s and Bateman’s opinions of the plaintiff’s medical experts apparently resonated with jurors as they needed less than 3½ hours to reject 79-year-old Alan Meinershagen’s claim that Konasiewicz was negligent in his care and treatment of the former Proctor-area dairy farmer.

The jury was asked to first decide whether Konasiewicz was negligent in his care and treatment of Meinershagen. Their answer was “no.” Even with that answer, the jury had to determine the amount of money that would fairly and adequately compensate Meinershagen. Their answer was zero dollars.

Konasiewicz asked Solheim to comment for him on the verdict.

“We are very pleased with the jury’s verdict,” Solheim said. “Dr. Konasiewicz has been very frustrated by his inability to respond to recent media coverage due to federal and state privacy laws. However, he is delighted to know that once the facts of his medical care and treatment were presented to an impartial jury, they returned a verdict finding that he appropriately cared for his patient.”

Meinershagen went to St. Luke’s in Duluth on Feb. 19, 2006, with weakness and numbness in his left arm and concerns that he had suffered a stroke. He was examined by Konasiewicz, who recommended a brain biopsy that he performed two days later.

Meinershagen’s attorney, Richard Bosse, argued that the biopsy turned a minor stroke into a major hemorrhage, which left him brain-injured with impairments in thinking, speaking and walking. The plaintiff’s medical experts testified there was better evidence that Meinershagen suffered a stroke and Konasiewicz should have conducted more tests before performing surgery.

The defense provided jurors with 26 symptoms of stroke and got a plaintiff’s witness to testify that Meinershagen exhibited none of them when admitted to St. Luke’s.

Defense witnesses testified that Konasiewicz made the best decision based on CT and MRI scans, the opinions of other doctors and on his own examination.

Solheim pointed out that one neurosurgeon who testified as an expert for the defense at trial said that Konasiewicz did an even more thorough study of Meinershagen than that expert said he typically does.

The defense attorney said that Meinershagen, whom he described as being “fiercely independent and opinionated,” chose the biopsy.

In his closing argument Bosse told jurors, “An individual like Alan Meinershagen can stand up and say, ‘I was wronged. I can take on this vast, vast health care delivery system of St. Luke’s and Dr. Konasiewicz and all of his colleagues.’ ”

Bosse suggested to jurors that they should award his client more than $2.1 million in damages, broken down as $672,342 for past health care, $722,400 for future pain disability and emotional distress and another $722,400 for future health care expenses. He said Meinershagen’s nursing home costs $7,000 a month.

Jurors were shown a document indicating that Konasiewicz had informed Meinershagen of the risks involved with the procedure, what alternative treatment was available and that there were no guarantees on the outcome of the procedure.

Under Minnesota law, as read to the jury by presiding Judge Heather Sweetland, “A specialist or neurosurgeon is not negligent solely because his efforts are unsuccessful. A failure of treatment is not negligence if the treatment was an accepted treatment based on the information the specialist or neurosurgeon had or reasonably should have had when the choice was made.”

Jurors were also told by the court that an error in diagnosis is not negligent if the diagnosis was an accepted diagnosis based on the information the specialist or neurosurgeon had or reasonably should have had when the diagnosis was made.

“A specialist or neurosurgeon must use reasonable care to get the information needed to exercise his or her professional judgment. An unsuccessful treatment chosen because a specialist or neurosurgeon did not use reasonable care would be negligence,” Sweetland said.

Solheim said the defense’s success came down to the credibility of the plaintiff’s experts.

“In this case, we had two consulting experts that testified for the plaintiff who did not have a meaningful clinical practice,” Solheim said. “Their income is primarily driven by consulting with trial lawyers across the country. Conversely, I thought that Dr. Konasiewicz was genuine and provided a detailed explanation of what he did,” which was buttressed by the defense’s medical experts.

While St. Luke’s was a co-defendant in the case, the hospital wasn’t included on the verdict form. Under Minnesota law, an employer is vicariously libel for the acts of its employee if the employee is acting under the scope of their employment. Bateman stipulated that Konasiewicz was an employee of St. Luke’s. Therefore, any verdict entered against Konasiewicz would have been entered against St. Luke’s.

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